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`SUPERIOR COURT
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`JUDICIAL DISTRI’
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`AT BRIDGEPORT
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`NOVEMBER 5, 2018
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`DOCKET NO. CV 18- 6074135 S
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`JOEL P. SANTIAGO
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`V.
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`DNA DIAGNOSTICS CENTER, INC.
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`MEMORANDUM OF DECISION RE: MOTION TO DISMISS NO. 103
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`FACTS
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`The plaintiff, Joel P. Santiago, commenced the present case against the defendant,
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`DNA Diagnostics Center, Inc., in March of 2018. In his one count complaint, the plaintiff
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`alleges that the defendant wrongfully informed the plaintiff that he was not the father of a
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`child. The plaintiff alleges that the defendant owed him a duty to conduct DNA—based
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`paternity testing within the standard of care and the defendant breached this duty by failing to
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`train and/or supervise staff to properly conduct testing and interpret test results; contaminating
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`the DNA samples submitted by the plaintiff and by the mother of the plaintiffs child; mixing
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`the samples submitted by the plaintiff with those of other clients; failing to train staff about
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`how to properly verify test results; and failing to take measures to prevent erroneous result
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`from being reported to the plaintiff.
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`On June 7, 2018, the defendant filed a timely motion to dismiss on the ground that the
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`court lacks personal jurisdiction over it. The motion was accompanied by a memorandum of
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`law. On July 17, 201.8,
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`the plaintiff filed a memorandum of law in opposition to the
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`defendant’s motion. The parties were heard at short calendar on July 23, 2018.
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`W
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`“Because a lack of personal jurisdiction may be waived by the defendant, the rules of
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`practice require the defendant to challenge that jurisdiction by a motion to dismiss.” (Footnote
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`omitted; internal quotation marks omitted.) Goloa’ner v. Women’s Center of Southeastern
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`Connecticut, Inc., 281 Conn. 819, 825, 917 A.2d 959 (2007). “A court deciding a motion to
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`dismiss must determine not the merits of the claim or even its legal sufficiency, but rather,
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`whether the claim is one that the court has jurisdiction to hear and decide.” (Internal quotation
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`marks omitted.) Hinde V. Specialized Education of Connecticut, Inc, 147 Conn. App. 730,
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`740-41, 84 A.3d 895 (2014).
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`The defendant argues that, based upon the clear language of the complaint,
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`the
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`plaintiff has alleged a medical malpractice claim. Accordingly, the defendant argues that the
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`plaintiff was required to submit a certificate of good faith signed by the plaintiff or the
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`plaintiffs counsel as well as a written opinion letter from a similar healthcare provider in
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`order to commence the present case and that the plaintiff’ 3 failure to do so deprives the court
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`of personal jurisdiction over the defendant. In response, the plaintiff argues that because his
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`complaint sounds in ordinary negligence rather than medical malpractice he was not required
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`to submit either a certificate of good faith or a written opinion letter.
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`General Statutes § 52-190a (a) provides in relevant part: “No civil action or
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`apportionment complaint shall be filed to recover damages resulting from personal injury or
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`wrongful death occurring on or after October 1, 1987, whether in tort or in contract, in which
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`it is alleged that such injury or death resulted from the negligence of a health care provider,
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`unless the attorney or party filing the action or apportionment complaint has made .a
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`reasonable inquiry as permitted by the circumstances to determine that there are grounds for a
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`good faith belief that there has been negligence in the care or treatment of the claimant. .
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`.
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`.
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`[T]he claimant or the claimant’s attorney .
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`.
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`. shall obtain a written and signed opinion of a
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`similar health care provider, as defined in [General Statutes §] 52-1840, which similar health
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`care provider shall be selected pursuant to the provisions of said section, that there appears to
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`be evidence of medical negligence and includes a detailed basis for the formation of such
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`opinion. .
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`. .”
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`“[T]he attachment of the written opinion letter of a similar health care provider is a
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`statutory prerequisite to filing an action for medical malpractice. The failure to provide a
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`written opinion letter .
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`.
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`. constitutes insufficient process and, thus, service of that insufficient
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`process does not subject the defendant to the jurisdiction of the court. .
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`.
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`. The jurisdiction that
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`is found lacking, however, is jurisdiction over the person, not the subject matter.” (Citation
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`omitted; internal quotation marks omitted.) Morgan v. Hartford Hospital, 301 Conn. 388,
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`401-402, 21 A.3d 451 (2011). “The plain language of [§ 52-190a (c)] .
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`.
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`. expressly provides
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`for dismissal of an action when a plaintiff fails to attach a written opinion of a similar health
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`care provider to the complaint, as required by § 52-190a (a).” (Footnote omitted.) Rios v.
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`CCMC Corp, 106 Conn. App. 810, 822, 943 A.2d 544 (2008).
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`The requirements of § 52-190a apply to claims that sound in medical malpractice, but
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`not
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`to claims
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`for ordinary negligence. Trimel v. Lawrence & Memorial Hospital
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`Rehabilitation Center, 61 Conn. App. 353, 356, 764 A.2d 203, appeal dismissed, 258 Conn.
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`711, 784 A.2d 889 (2001). “[P]rofessiona1 negligence or malpractice .
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`.
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`. [is] defined as the
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`failure of one rendering professional services to exercise that degree of skill and learning
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`commonly applied under all the circumstances in the community by the average prudent
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`reputable member of the profession with the result of injury, loss, or damage to the recipient
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`of those services.
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`.
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`.
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`. Furthermore, malpractice presupposes some improper conduct in the
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`treatment or operative skill [or] .
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`.
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`. the failure to exercise requisite medical skill .
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`.
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`.
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`. From
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`those definitions, we conclude that the relevant considerations in determining whether a claim
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`sounds in medical malpractice are whether (1) the defendants are sued in their capacities as
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`medical professionals, (2) the alleged negligence is of a specialized medical nature that arises
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`out of the medical professional-patient relationship, and (3)
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`the alleged negligence is
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`substantially related to medical diagnosis or treatment and involved the exercise of medical
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`judgment.” (Citations omitted; emphasis omitted; internal quotation marks omitted.) Id., 357—
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`58. “The rule of law that distinguishes between medical malpractice and ordinary negligence
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`requires a determination of whether the injury alleged occurred during treatment because of a
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`negligent act or omission that was substantially related to treatment.” Id., 360.
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`In determining whether a complaint sounds in medical malpractice or ordinary
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`negligence, it is appropriate to consider all of the allegations in the count at issue. See Perry
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`v. Valeria, 167 Conn. App. 734, 742-43 and 743 n.7, 143 A.3d 1202 (2016). In Perry, for
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`example, the plaintiff alleged that the patient was injured in the course of a physical therapy
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`session because the therapist failed to properly secure the patient’s leg brace, properly
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`supervise or monitor the patient as she attempted to ambulate, take steps to prevent the patient
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`from falling, and properly support or assist the patient in order to prevent injury. Id., 736-3 7.
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`The first two prongs of the test laid out in Trimel were not disputed by the plaintiff, but as to
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`the third prong, the court noted that “[t]he alleged negligent acts or omissions are substantially
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`related to [the patient’s] medical diagnosis and involved the exercise of [the therapist’s]
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`medical judgment. The allegations in the one count complaint suggest that [the therapist] was
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`required to assess [the patient’s] physical capabilities in determining how to support her while
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`ambulating and in determining the degree of supervision and support necessary for [the
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`patient] to safely ambulate with her walker while wearing the leg brace. The securing of the
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`leg brace .
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`.
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`. was only one component of the overall physical therapy session, and [the
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`therapist’s] alleged failure to properly secure the leg brace was but one of many allegations of
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`negligence in the complaint.” Id., 743. The court therefore determined that, based on the
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`allegations before it, the claim sounded in medical malpractice. Id., 743 -44.
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`Whether allegations constitute medical malpractice depends upon the specific
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`circumstances of the case. See Trimel V. Lawrence & Memorial Hospital Rehabilitation
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`Center, supra, 61 Conn. 357. In Batista v. Jacobs, Superior Court, judicial district of Hartford,
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`Docket No. CV—09-6006080-S (June 23, 2010, Sheldon, J.), for instance, the court determined
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`that the third prong of Trimel was met where the plaintiff alleged that the defendant-physician
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`negligently informed the plaintiff that he was HIV positive after receiving the preliminary
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`results of a blood test conducted at a laboratory. The court noted that the plaintiffs claim
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`“would require evidence of the standard of care for a physician in reporting the results of the
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`preliminary HIV test. In particular, the questions to be answered would include: (1) whether a
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`reasonably prudent physician interpreting the preliminary test results received from Quest
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`would have notified a patient of the results; (2) and if so, the manner in which the reasonably
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`prudent physician would do so .
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`.
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`.
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`.” Id. The court further noted that “[b]y alleging an
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`improper
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`interpretation of the test
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`results as opposed to allegations of improper
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`communication, the plaintiff ensured that proof of a deviation from the applicable standard of
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`care is required.” (Emphasis in original.) Id. In Tenerow v. Concentra Health Services, Inc.,
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`Superior Court, judicial district of New Haven at Meriden, Docket No. CV-08-5004011—S
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`(June 24, 2009, Fischer, J.), on the other hand, the court determined that “[a]dministering a
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`preemployment agility test does not constitute medical diagnosis or treatment. Although the
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`agility test in this case was administered by a licensed physical therapist, [the plaintiff] did not
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`undergo the agility test in order for the therapist to diagnose or prescribe treatment for any
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`medical condition, but in the pursuit of employment. Moreover, the administering of such a
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`test did not require the exercise of medical judgment by the physical therapist in this case.”
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`This persuasive authority illustrates the fact-specific nature of the inquiry involved in the
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`determination of whether a claim meets the third prong established by Trimel.
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`In another persuasive decision, Gunter v. Laboratory Corp. ofAmerica, 121 S.W.3d
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`636 (Tenn. 2003), the Tennessee Supreme Court discussed whether a plaintiffs claim against
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`the laboratory that conducted his paternity test sounded in medical malpractice or in ordinary
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`negligence. The court noted that “[w]hen a plaintiffs claim is for injuries resulting from
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`negligent medical treatment, the claim sounds in medical malpractice. .
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`.
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`. When a plaintiffs
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`claim is for injuries resulting from negligent acts that did not affect the medical treatment of a
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`patient, the claim sounds in ordinary negligence.” (Citation omitted.) Id., 640. “[W]hen a
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`claim alleges negligent conduct which constitutes or bears a substantial relationship to the
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`rendition of medical treatment by a medical professional, the medical malpractice statute is
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`applicable. Conversely, when the conduct alleged is not substantially related to the rendition
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`of medical treatment by a medical professional, the medical malpractice statute does not
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`apply. The crucial question here, then, is whether the services performed by [the laboratory]
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`for [the plaintiff] bear a substantial relationship to the rendition Of medical treatment.” Id.,
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`641. The court went on to determine that “[o]f course, there may be circumstances where the
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`analysis of a person’s blood could be substantially related to the rendition of medical
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`treatment. But when that analysis is performed to obtain a DNA profile for purposes of
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`paternity determination, no rendition of medical treatment is involved.
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`.
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`. Thus, the core
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`issue in this case—the adequacy of the laboratory’s blood testing procedures—does not
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`implicate issues of medical competence or judgment linked to [the plaintiffs] treatment.”
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`(Citation omitted.) Id., 641.
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`In the present case, the plaintiff’s complaint does not sound in medical malpractice. In
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`light of all the allegations in the plaintiff s one count complaint,
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`it is apparent that the
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`defendant’s alleged negligence does not concern diagnosis or treatment and did not involve
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`medical judgment. The allegations in the present case therefore do not meet the third prong of
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`the Trimel
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`test. Accordingly,
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`the plaintiffs one count complaint sounds in ordinary
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`negligence.
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`First, the plaintiff has not alleged that the defendant’s negligence involved medical
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`judgment. The allegations in the present case concern whether the defendant’s employees
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`properly conducted a DNA test and whether there were adequate training safeguards to
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`prevent the reporting of erroneous results; there are no allegations that the defendant failed to
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`properly assess the plaintiffs medical condition or that the inaccurate report was the result of
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`the defendant’s employees exercising medical judgment. Although the plaintiff does allege
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`that the defendant failed to train its employees how to properly interpret and verify test
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`results, the present case is distinguishable from Batista. In Batista, the defendant-physician
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`was alleged to have negligently reported inaccurate test results to the plaintiff because the
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`defendant failed to realize that
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`the preliminary test results might be unreliable. These
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`allegations pointed to the exercise of medical judgment because the inaccurate reporting
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`hinged on the defendant’s judgment as to the appropriateness of relaying the preliminary test
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`results without waiting for the confirmatory results. In the present case, however,
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`the
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`plaintiff s complaint
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`ties the allegations concerning the interpretation and verification
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`procedures to the faulty execution of the test and to the communication of misinformation.
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`The allegations do not implicate the defendant’s employees’ judgment concerning the weight
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`to be given to the test results. Like the circumstances alleged in Gunter, the defendant’s
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`alleged negligence in the present case does not involve the exercise of medical judgment.
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`Second, because the plaintiff in the present case has alleged that the defendant failed
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`to properly conduct a paternity test and reported incorrect test results to the plaintiff, the
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`defendant’s negligent conduct is not alleged to be either diagnostic or related to any kind of
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`treatment. The present case is more closely analogous to Tenerow than Batista in that the
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`paternity test undertaken was not for the purposes of diagnosing the plaintiff with a medical
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`condition or treating any medical condition;
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`rather,
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`the plaintiff was merely seeking
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`information about whether the biological sample he submitted to the defendant matched with
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`the sample submitted by the unborn child’s mother. Indeed, the Tennessee Supreme Court in
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`Gunter determined that a paternity test was not substantially related to the rendition of
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`medical treatment—a standard similar to the third prong of Trimel—bolstering the conclusion
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`that the claim in the present case is not substantially related to medical diagnosis or treatment.
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`As the plaintiffs complaint does not allege that
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`the defendant’s negligence is
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`substantially related to medical diagnosis or treatment or that the defendant’s negligence
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`involved the exercise of medical judgment, the plaintiffs claim sounds in ordinary negligence
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`and not medical malpractice. Consequently, § 52-190a is inapplicable to the present case, and
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`the plaintiff was not required to submit a certificate of good faith and a written opinion letter. The
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`defendant’s motion to dismiss on the ground that the court lacks personal jurisdiction is therefore
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`denied.
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`ELLIS, J.
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